218 F. Supp. 3d 1136
N. Mar. I.2016Background
- In 2016 Commonwealth Utilities Corporation (CUC) and 13 CW-1 transitional workers sued DHS, ICE, and USCIS challenging the annual CW-1 numerical caps and seeking a preliminary injunction to allow renewal/continued work after their CW-1 permits were rejected for FY2016 when the cap was reached.
- The CNRA (2008) required DHS to establish a transitional CW-1 permit system for the CNMI with annual reductions to zero by Dec. 31, 2019; DHS implemented regulations (Final Rule, 2011) and published annual caps in Federal Register notices.
- USCIS announced the FY2016 CW-1 cap at 12,999; Plaintiffs’ renewal petitions were filed after USCIS announced the cap had been reached (May 5, 2016) and were rejected and returned with fees.
- Plaintiffs alleged (1) violation of the APA (including that CW-1 is a “license” under 5 U.S.C. § 558 so renewals cannot expire while pending), (2) DHS exceeded CNRA discretion by failing to establish and administer a required “system” (and allocation scheme) and failing to follow APA notice-and-comment for each annual cap.
- After hearing and briefing, the court denied the preliminary injunction, finding plaintiffs unlikely to succeed on the merits, no irreparable harm, and that the balance of equities and public interest did not favor injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CW-1 status is a “license” under APA §558 so pending renewal preserves status | CW-1 is a license; §558(c) prevents expiration while a timely renewal is pending | CNRA/USCIS treat CW-1 as a temporary permit/status, not a perpetual license; §558(c) governs continuing licenses, not time-limited transitional status | CW-1 is not a §558 license; §558(c) does not apply |
| Whether DHS failed to establish the CNRA-required “system” (method/criteria) for setting caps | DHS never set a defined regulatory allocation system and thus failed CNRA duties (including consultation, criteria, allocation) | DHS created a flexible system via the Final Rule and annual Federal Register notices, considering prior filings, Governor input, economic indicators | DHS established a flexible, reasonable system for determining annual caps, though the court reserved judgment on whether a discrete allocation mechanism exists |
| Whether USCIS unlawfully rejected renewal petitions without considering exemptions (i.e., failed to evaluate exception criteria) | Rejections were summary; USCIS should have checked whether petitions fit any exceptions before returning them | Regulations permit rejection when numerical limit met; USCIS announced limited post-cap filings (with clarifications) and followed rules by returning fees and notices | Rejection complied with 8 C.F.R. §214.2(w)(20); plaintiffs’ petitions were properly returned after cap reached |
| Whether DHS violated APA notice-and-comment by not subjecting each annual cap to a separate rulemaking | Each annual numerical limitation required advance notice-and-comment under §553 | Annual, flexible Federal Register notices coupled with the Final Rule provide adequate process; repeat rulemaking would use stale data and hinder flexibility; good-cause exceptions and deference apply | Separate notice-and-comment for each annual cap not required; publishing annual caps in notices was reasonable and practical |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (preliminary injunction factors)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (alternative preliminary injunction standard: serious questions and balance of hardships)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir.) (serious-questions framework discussion)
- Sierra On-Line, Inc. v. Phoenix Software, 739 F.2d 1415 (definition of "serious question")
- Gilder v. PGA Tour, 936 F.2d 417 (characterizing serious questions standard)
- Miami MDS Co. v. F.C.C., 14 F.3d 658 (defining licenses of continuing nature)
- Bankers Life & Cas. Co. v. Callaway, 530 F.2d 625 (examples distinguishing licenses that qualify under §558(c))
- Rivas v. Rail Delivery Serv., 423 F.3d 1079 (standing/injury discussion for injunctive relief)
- Braude v. Wirtz, 350 F.2d 702 (defining "legal wrong" and aliens' lack of right to admission)
- United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (executive exclusion power and congressional authority over admission)
- Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031 (review under APA arbitrary-and-capricious standard)
- Pac. Coast Fed'n of Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265 F.3d 1028 (agency reliance on improper factors as arbitrary and capricious)
- Heckler v. Chaney, 470 U.S. 821 (agency discretion committed to agency by law)
- Massachusetts v. EPA, 549 U.S. 497 (agency procedural discretion and need for reasoned explanation)
- Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (deference to agencies on procedural rulemaking)